Calcutta High Court
Mahavir Properties Private Limited vs Sri Sri Iswar Gajalakshmi Mata ... on 18 May, 2018
Equivalent citations: AIRONLINE 2018 CAL 1244
Author: Moushumi Bhattacharya
Bench: Biswanath Somadder, Moushumi Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The HON'BLE JUSTICE BISWANATH SOMADDER
AND
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
APD No.173 of 2015
With
C.S. No.164 of 1988
MAHAVIR PROPERTIES PRIVATE LIMITED
VS.
SRI SRI ISWAR GAJALAKSHMI MATA THAKURANI & ORS.
APD No.174 of 2015
With
C.S. No.164 of 1988
MARSHALL SONS & COMPANY (INDIA) LTD.
VS.
SRI SRI ISWAR GAJALAXMI MATA THAKURANI & ORS.
For the Appellant : Mr. P. S. Bose, Sr. Advocate,
in APD 173 of 2015 Mr. D. S. Mishra, Advocate.
Mr. Sushil Kr. Mishra, Advocate.
Mr. Shailendra Kr. Mishra, Advocate.
For the Appellant : Mr. Pratap Chatterjee, Sr. Advocate,
in APD 174 of 2015 Mr. Saikat Basu, Advocate
Mr. Abhijit Dey, Advocate
For the Respondent : Mr. Sabyasachi Chowdhury, Advocate
Mr. Chanchal Kumar Dutt, Advocate
Mr. Rajarshi Dutta, Advocate
Ms. Krishna Mullick, Advocate
Heard on : 07.11.17, 09.11.17, 13.11.17, 15.11.17,
20.11.17, 23.11.17, 27.11.17, 28.11.17,
06.12.17, 11.12.17, 13.12.17, 21.12.17
02.01.18, 03.01.18, 04.01.18, 08.01.18 and
30.01.18.
Judgment on : 18.05.2018
Moushumi Bhattacharya, J. :
The instant appeals arise out of a judgment dated 14th January 2015 in a suit for eviction and for mesne profit filed by the respondent No.1 (Iswar Gajalakshmi Mata Thakurani) in 1988 against Marshall Sons (the Appellant in APD No. 174 of 2015) for khas possession of the suit premises as described in Schedule A of the plaint. Mahavir Properties (the appellant in APD No.173 of 2015) got itself added as defendant No.2 on its application for addition of party under leave granted by an order dated 10th March 2004 passed by this Court. Mahavir filed its written statement in the suit in May 2004 disputing the claim of the plaintiffs for determination of the lease and khas possession of the suit property as well as mesne profit.
The plaintiffs to the suit are the respondents before us, Marshall (the appellant in APD No. 174 of 2015) is the defendant no.1 in the suit being C.S. No. 164 of 2015 and Mahavir (the appellant in APD No. 173 of 2015) is the defendant No.2 in the suit being C.S. No.164 of 2015.
The plaintiff's case is that premises No.33/1, Netaji Subhas Road, Kolkata-700001 was demised in his favour by 17 deeds of settlement all dated 1st June 1965 by one Murari Charan Law, since deceased. By a registered deed of lease dated 20th April 1964 the defendant No.1/respondent was inducted as a Lessee of the entirety of the suit premises by Murari Charan Law, since deceased. According to the plaintiffs, the first defendant took possession of the suit premises and in possession thereof.
According to Mahavir, by a registered lease deed dated 20th April 1964, the plaintiffs demised unto the defendant No.1, premises No. 33/1, Netaji Subhas Road for a period of 60 years with the option of renewal for a further 25 years. By virtue of the said deed of lease the defendant No.1 had the liberty to assign or sublet the entire leasehold interest to any third party without consent of the lessor namely, the plaintiff. Pursuant to the powers given under the said deed of lease the defendant No.1 executed a registered sub-lessee on 21st January 1974 whereby the defendant No.1 demised in favour of the defendant No.2 the premises mentioned in the lease deed dated 20th April, 1964, by virtue of the said sub lease dated 21st January 1974, the defendant No.1 took possession of the said premises.
Before filing the instant suit the plaintiff served a notice of Ejectment dated 16th December, 1987 (Exhibit-F) under section 111(g) of The Transfer of Property Act, 1882 upon the defendant No.1. In the said notice two grounds were alleged namely that (i) illegal construction of unlawful structures covering about 8000 square feet on the roof of the demised building and (ii) default in payment of rent since October, 1987.
The additional ground is that the defendant had illegally and in deviation of original sanctioned building plan converted the bathroom space on the ground floor into shops.
In defence to the claims made in the plaint, Marshall alleged that under the terms of the lease, the lessee was entitled to pulling down the existing structure and constructing a new one and that the construction was in conformity with the Rules of the Calcutta Corporation. It further contended that the lessee could sublet the demised premises by way of mortgage which it did to Mahavir, which in turn constructed a new building by pulling down the existing structure. The other point taken by Marshall is that the notice determining the lease dated 16th December 1987 was never served upon Marshall as defined in section 27 of the General Clauses Act, 1897, as also sections 111(g) and 114A of the Transfer of Property Act, 1882. Mahavir's defence with regard to the notice terminating the lease not being valid in law is the same as Marshall's. Additionally, it disputes that there was any unauthorised construction or deviation caused by it in the demised premises.
Upon hearing the parties, the learned Single Judge settled six Issues for trial which are:
1. Have the plaintiffs any cause of action to institute the present suit?
2. Was there any valid determination of the lease?
3. Did the defendant fail to pay monthly rents as per provision embodied in the Deed of Lease?
4. Did the defendant in violation of the Rules and Bye-Laws of the Kolkata Municipal Corporation and in breach of sanctioned plan construct unauthorized structure in the demised premises and convert the bathroom space on the ground floor into shops?
5. Are the plaintiffs entitled to get a decree, as prayed for?
6. To what reliefs are the plaintiffs entitled?
After considering the submissions of Counsel appearing for the parties on each Issue, the learned Single Judge was pleased to adjudicate the Issues as under:
Issues 1 and 2:
The plaintiffs had a valid cause of action to institute the suit and there had been a valid determination of the lease.
Issue 3:
The defendants (both Marshall and Mahavir) failed to pay monthly rents as agreed under the deed of lease.
Issue 4:
The defendants constructed an unauthorised structure in the demised premises in breach of the sanctioned plan, which was also in violation of the Rules and Bye-Laws of the Kolkata Municipal Corporation. Issues 5 and 6:
The plaintiffs are entitled to a decree of eviction and further entitled to a decree for a sum of Rs.14,49.000/- being the aggregate of the amount which the defendants are liable to pay in terms of an order dated 5th July 1988 from September 2001 till January 2015 in addition to other amounts which may be found due from the defendants on account of mesne profit.
In coming to the conclusions as stated above, the learned First Court relied on the following material in support of his findings. Issues 1 and 2:
Although the notice determining the lease dated 16th December 1987 (Exhibit-F) has been disputed on various legal grounds, the first defendant/Marshall has not denied the receipt of the said notice. What is relevant is that Marshall has only disputed the contents of the said notice. Although, the second defendant (Mahavir) alleges that the notice of termination of lease was not served upon it, the second defendant is bound by the actions of the first defendant (Marshall) and traces its rights to the property through the deed of lease since Marshall is the lessee and Mahavir is a sub-lessee to the property in question. Mahavir has also not been able to establish by evidence that the plaintiffs were aware of the execution of the sub-lease by Marshall in favour of Mahavir. The learned Single Judge additionally refers to the notices dated 26th November 1987 (Exhibit-C) and 1st December 1987 (Exhibit-D) which record that Marshall is a defaulter in payment of rent since October 1987 and came to the finding that neither Marshall nor Mahavir could establish by evidence that the breaches complained of in Exhibit-F/notice of termination of lease were remedied prior to January 1987.
Issue-3:
The learned Single Judge has relied upon Exhibit-D being a letter dated 1st December 1987 and Exhibit-F being the notice of termination where the plaintiffs alleged that rents on and from October 1987 were not paid by Marshall. This claim of the plaintiffs was not disputed by Marshall since Marshall did not adduce any evidence and further the first witness of Mahavir (defendant No.2) admitted that it did not pay rent to the plaintiffs from 1974 to 1992. He further holds that although Mahavir claimed to have paid rent through Marshall, none of the defendants produced any witness to establish that rent was paid by the defendants to the plaintiffs on and from October 1987.
Issue 4:
The learned Single Judge found that the nature of constructions at the suit premises were not disputed by either Marshall or Mahavir who claimed that the constructions were in accordance with the sanctioned plan of 1975. However, no witnesses came forward on behalf of Marshall to adduce any evidence in support of such claim. Mahavir produced two witnesses and issued a subpoena to an officer of the KMC which resulted in a plan being produced in respect of the suit premises being of the year 1975 (Exhibit-1A). Mahavir claims that the construction was done on the basis of this plan which was allegedly sanctioned in 1975. The learned Single Judge records that the KMC was required to produce the sanctioned plan in respect of the suit premises and the executive engineer of the KMC produced a sanctioned plan bearing No.180 dated 29th March 1966 pursuant to the subpoena issued by the plaintiffs. By an order dated 10th December 2013 passed by this Court, the executive engineer KMC was directed to search and find the sanctioned plan bearing No.22 dated 9th July 1975 and to produce a same before this Court on 9th January 2014. However, the only sanctioned plan which the executive engineer KMC could produce was a sanctioned plan of 1966 (Exhibit 1) and never suggested that there was any other sanctioned plan in respect of the said premises in its records or that there was any attempt to obtain a sanctioned plan subsequent to 1966. The sanctioned plan of 1975 was produced by Mahavir and relied on the evidence of the executive engineer KMC that the KMC granted sanction of a building plan in the year 1975. Having considered the submissions made by Counsel appearing for the parties as well as the evidence on record, the learned Single Judge came to the conclusion that there is only one sanctioned plan of 1966 in relation to the concerned premises in the records of the KMC (Exhibit-1) and that no application was made to KMC for sanction of a plan in 1975. Since it is an admitted fact that the constructions were in deviation of the sanctioned plan of 1966 and the defendants failed to establish any other sanctioned plan of 1975, it follows that the constructions were made in breach of the sanctioned plan with regard to the suit premises and in violation of the Rules and Bye-Laws of the KMC.
Issues 5 and 6:
The learned Single Judge refers to an order dated 5th July 1988 in an application for appointment of a receiver to collect rent from the sub-tenants where this Court granted liberty to the plaintiffs to encash the cheques already issued towards rents up to April 1988 and defendants were directed to pay Rs.9,000/- per month to the plaintiffs till disposal of the suit. The learned Single Judge concludes that on a combined reading of the aforesaid order together with three letters exchanged between the parties being a letter dated 4th May 2004 (Exhibit- 3) from Marshall to the plaintiffs, a letter dated 12th May 2004 (Exhibit-4) from the plaintiffs to Marshall and the conduct of the parties prior to and subsequent to the filing of the suit, both Marshall and Mahavir were required to pay Rs.9,000/- per month during the pendency of the suit. The learned Judge also holds that the payment of Rs.1,26,000/-, which was made subsequent to the order dated 5th July 1988, by the defendants and its acceptance by the plaintiffs cannot be construed as creating a new lease or a fresh tenancy within the meaning of The Transfer of Property Act, 1882 or the West Bengal Premises Tenancy Act, 1956.
On the basis of the above findings, the First Court concluded that there has been a valid determination of the lease; the defendants made unauthorised constructions in violation of the sanctioned plan of 1966 and did not remedy the breaches complained of in spite of opportunity being given by the plaintiffs and that in view thereof, the plaintiffs are entitled to a decree of eviction as prayed for. The plaintiffs would also be entitled to a decree for a sum of Rs.14,49,000/- being the aggregate amount which the defendants were liable to pay in terms of the order dated 5th July 1988 from September 2001 till January 2015 in addition to other amounts which may be found due and owing from the defendants on account of mesne profits. The aforesaid direction was given by the First Court on the basis of an admission made by the defendants that no payment was made by way of rent on and from September 2001.
Mr. P. S. Bose, learned senior counsel submits that pursuant to the powers given under the lease deed, the defendant No.1 executed a registered sub-lease on 21 January 1974 whereby the property was demised in favour of the defendant No.2/Mahavir (appellant in APD No. 173 of 2015), pursuant to which Mahavir took possession of the premises and has been in lawful possession thereafter. Mahavir started paying monthly rent directly to the plaintiffs from November 1992 which was acknowledged by the plaintiffs till August 2000. The defendant has challenged the notice of eviction dated 16th December 1987 by which the lease of 1964 was determined on primarily the ground that the plaintiffs had full knowledge of the fact that Mahavir was in possession of the suit property and had constructed the multi-storied building at the said premises after the sub-lease was granted in favour of Mahavir. Counsel submits that despite having such knowledge the notice was not served on Mahavir. He submits that the notice is an invalid notice under section 111(g) of the Transfer of Property Act, 1882 as the lessor under the said section is required to give notice in writing to the lessee of his intention to determine the lease and that such determination cannot be a date prior to the date of issuing the notice. It is further submitted that there is no description of any unauthorised construction/deviation from any particular plan and further the notice did not specify the time frame within which the alleged breaches can be remedied. The notice contains inconsistencies in that the date for compliance mentioned in the notice for remedying the breach is of about a year back from the date of the notice and not for any date in the future. The aforesaid cannot be explained away as a mere typographical mistake as under section 111(g) of the Transfer of Property Act, a prior notice is mandatory specifying a period subsequent to the notice for remedying the grounds of determination. Since the notice is invalid and bad in law, there is no valid determination of the lease and the plaintiffs have therefore no cause of action to file the present suit.
Counsel relies on Bhuneshwar Prasad & Anr. Vs. United Commercial Bank & Ors. Reported in (2000) 7 SCC 232. On the proposition that an agreement creating a fresh tenancy within the meaning of section 116 of the Transfer of Property Act can be inferred from the conduct of the parties that after determination of the contractual tenancy. A fresh tenancy had been created between the parties. Counsel also relies on Union of India and Ors. Vs. Vasavi Cooperative Housing Society Limited and Others reported in (2014) 2 Supreme Court Cases 269, for the proposition that in a suit for declaration of title, the burden lies on the plaintiff to make out a clear case for granting such a declaration and the weakness of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
Mr. Pratap Chatterjee, learned senior counsel appearing for the defendant No.1/Marshall (appellant in APD No. 174 of 2015) submits that no notice dated 16th December 1987 was served upon Marshall within the meaning of "service by post" as defined in section 27 of the General Clauses Act, 1897. Under the said section, service by post has been defined inter-alia as to be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the original course of post. Counsel submits that from the evidence led, none of the aforesaid has been established. He submits that the notice is a combined notice under section 111(g) and section 114A of the Transfer of Property Act 1882 and must have the following ingredients; namely, the notice must specify the particular breach complained of and if the breach is capable of being remedied, require the lessee to remedy such breach within a reasonable period of time; if the breach is irremediable, the lessee can be asked to vacate the premises within the time indicated in the notice provided the breach is proved to be not remediable. The service of such a notice is essential for initiating a suit for forfeiture. Counsel submits that the notice is inconsistent and mutually exclusive since it determines the lease with immediate effect because the breach is irremediable, but again calls upon Marshall to remedy a breach or else appropriate legal proceedings would be drawn up. The notice also calls upon Marshall to take remedial action by January 1987 while the notice is dated 16th December 1987. Hence the notice is bad in law and not binding upon Marshall. Counsel further submits that mesne profits could not have been awarded against Marshall since Marshall is not in possession and mesne profits as defined in section 2(12) of the Code of Civil Procedure, 1908 applies only when a person is in wrongful possession of a property. Marshall has not been in possession since 21st January 1974, when possession of the property had been handed over to Mahavir. The plaintiff has also not made any submission to the effect that Marshall was in actual possession of the premises or was in actual receipt of profits and hence no decree of mesne profits could have been passed against Marshall. Counsel relies on Lucy Kochuvaree Vs. P. Mariappa Gounder and other reported in (1979) 3 SCC 150, on the principles regarding liability for mesne profits.
Mr. Sabyasachi Chowdhury, counsel appearing for the plaintiffs (respondents before us) submits that the defendants have committed breach of the terms and conditions of the lease deed dated 28th April 1964 (Ex-B) (entered into between the plaintiffs and the defendant No.1/Marshall); in constructing the building which is not in accordance with the sanctioned plan of KMC and relies upon section 111(g) of the Transfer of Property Act whereby a lease of immovable property can be determined in case the lessee breaks an express term of the lease. He submits that several earlier notices dated 26th November 1987 and the notices issued on 1st December 1987 and 4th December 1987 (Ex-C, D and H respectively) in writing were given for inspection of the suit property which the defendants refused and the plaintiffs were ultimately compelled to determine the lease by a notice dated 16th December 1987. In response to the challenge of the notice not being received by Marshall, counsel states that Marshall has only denied the content and validity of the said notice which was tendered in evidence (Ex-F) without any objection. Counsel relies on R.V. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr. reported in (2003) 8 SCC 752, on the effect tendering a document in evidence without any objection.
Counsel submits that the aforesaid notices would show that the plaintiffs had not only complained of unauthorised construction but had requested for an inspection which was refused by the defendants. Marshall had also been specifically informed of the breaches and had been given an opportunity to remedy such breach failing which the lease was to be directed as determined. Marshall's contention that the time to remedy the breach was insufficient/an impossibility, is contrary to the case made out in the written statement. Counsel relies on Bhubanmohini Dasi and Ors. Vs. Kumudbala Dasi and Ors. reported in XXVIII CWN 131, for the proposition reference in this context may be made to Bhubanmohini Dasi where a Division Bench of this Court held inter-alia that a litigant who avails himself of the right to press inconsistent or contradictory cases can hardly by expected to secure confidence of the Court.
On the issue of unpaid rent, counsel submits that there was no response from Marshall to the letter dated 1st December 1987 (Ex-F) where it had been clearly stated that rents from October 1987 is outstanding and a demand had been made for Rs.18,000 for October and November 1987. Marshall has not led any evidence by way of witness action to refute the aforesaid. Witness on behalf of Mahavir (Defendant No.2) has admitted that from 1974 to 1992, Mahavir did not pay any rent directly to the plaintiff. In answer to the documents relied on by the defendants to show that amounts were being tendered and were being accepted by the plaintiffs, after filing of the suit in 1988, Counsel relies on an order dated 5th July 1988 where the payment was directed to be accepted by the plaintiffs without prejudice to its rights. With regard to breach on the part of the defendants in making constructions contrary to the sanctioned plan of the KMC, Counsel has relied on the sanctioned building plan of the suit premises of 1966 (Ex-i). It is submitted that despite specific directions given by this Court on 10th December 2013 to the executive engineer of KMC, the sanctioned plan dated 9th July 1975, relied on by the defendants, was produced. On the other hand, by the order dated 14th February 2014, counsel for KMC produced Ex- 1, series of documents being the sanctioned plan of 1966. The Report of the Surveyor dated 28th January 2011 (Ex-J) has pointed out the specific deviations supported by photographers taken at actual site. The evidence of Mahavir has not challenged the contents of the Report in respect of the deviations pointed out. The sanctioned plan of 1966 is the only record available with the KMC and confirmed by Counsel appearing for KMC. He submits that Asru Kanti Ghosh, witness for Mahavir, could not produce any plan of 1975 and also admitted that no plan of 1975 was found in the KMC records. Several opportunities were given to KMC by this Court thereafter for production of the 1975 Plan but which has not been produce till date. He submits that even if the alleged Plan of 1975 (Ex-1A and Ex-6) are taken into consideration even then the building suffers from deviations in breach of the conditions and lease of 1964. Part of the ground floor had been converted into shops contrary to the sanctioned plan as reported in a Report published in The Telegraph on 13th February 1988 (Ex-G). Counsel submits that in view of the breach of two essential conditions of the lease, namely, for non-payment of rents and for constructing the building in deviation of the sanctioned plan which is also in violation of the Rules and Bye-laws of the KMC, the plaintiffs are entitled to determine the lease and to a decree of eviction against both the defendants. Since the suit premises were sub- leased by Marshall in favour of Mahavir, the latter would be bound by a decree passed against the former. The determination of lease being valid, the occupation of the defendants subsequent to the determination is unlawful and the plaintiffs are hence entitled to mesne profits for such unlawful occupation.
We have considered the submissions made on behalf of Counsel appearing in the two appeals. The impugned judgment records that Marshall did not produce any witness; Mahavir produced two witnesses and one witness on subpoena and the respondents produced two witnesses. We have considered the evidence led by the parties as well as the materials-on- record. For convenience our views are given under the issues framed by the learned Single Judge.
Issue-1: Have the plaintiffs any cause of action to institute the present suit? We are of the view that since the appellants/defendants committed breach of the terms and conditions of the deed of lease dated 28th April 1964, the respondents/plaintiffs were entitled to determine the lease by the Notice of Termination dated 16th December 1987, preceded by the three notices before it.. Hence, the respondents had a valid cause of action to institute the present suit against the defendants.
Reasons:
The lease deed (Exhibit B) contained inter-alia the term that "the lessee shall within five years from the date of such demolition erect a new building and structure of a prominent nature thereon at a cost of not less than Rs.20,00,000/- such building and structure must be constructed in conformity with the Rules and Bye-Laws of Corporation of Calcutta. The lessees hereby agree to forward the plan of the proposed building and structure to the lessor".
The said lease also provided that "any breach or non-observance of any covenant or condition hereinbefore contained and on the lessee's part to be observed and performed....................The lessor may notwithstanding anything herein contained enter into and upon the said premises and on the buildings and structures which may be constructed as aforesaid or any part thereof..........".
According to the respondents/plaintiffs, the appellants committed breach of the above terms in constructing the building which was not in accordance with the sanctioned building plan of KMC. Reference may be made to section 111(g) of the Transfer of Property Act, 1882 which states that a lease of immovable property is determined by forfeiture; in case the lessee breaks an express condition which provides that, on such breach, the lessor may re-enter. After giving a notice in writing to the lessee of his intention to determine the lease, the respondents/plaintiffs duly exercised this right to determine the lease since the appellants/defendants refused to provide inspection of the suit property despite repeated notices dated 26th November 1987 and the notices dated 1st December 1987 and 4th December 1987 which preceded the notice of termination. The respondents were hence compelled to determine the lease by the notice dated 16th December 1987 (Exhibit-F), which gave the respondents/plaintiffs an immediate cause of action to file the suit.
Issue-2: Was there any valid determination of the lease? The receipt of the notice determining the lease dated 16th December 1987 (Exhibit-F) was written by the respondents/plaintiffs to Marshall (defendant No.1), which has not been denied by the latter. In Marshall's written statement there is no specific denial of the fact that Marshall received the Notice determining the lease or a clear statement that it did not receive the Notice. In paragraph 20 of the Written Statement, Marshall has only disputed the content and validity of the said notice, which was also tendered in evidence without any objection. Reference may be made to R.V. Venkatachala, which held inter-alia that an objection to the admissibility of evidence should be taken when the evidence is tendered and not subsequently. Further, the notice of termination refers to earlier notices dated 26th November 1987, 1st December 1987 and 4th December 1987 where the respondents/plaintiffs had sought for inspection of the suit property. The plaintiffs had mentioned in the said notices that Marshall was a defaulter in payment of rent since October 1987 and Marshall was called upon to remedy the breach in default of which, the lease would stand determined after January 1987. The contents of the notice determining the lease taken together with the earlier notices comply with the requirements under sections 111(g) and 114A of the Transfer of Property Act. These three letters and the notice of termination shows that the respondents/plaintiffs had complained of the defendant's constructing the disputed structures and had sought inspection of the suit premises which was refused by the defendants. Hence, Marshall was specifically informed of the breaches and given an opportunity to remedy the breach for almost a monthly preceding the notice of termination. Marshall was also put on notice that failing the aforesaid, the lease would be determined. The respondents/plaintiffs have therefore complied with the requirements of sections 111(g) and 114A of the Transfer of Property Act and there has been a valid determination of the lease. Marshall's defence that the contents of the notice determining the lease are inconsistent or could not be complied with are contrary to the statements made in its written statement. Reference in this context may be made to Bhubanmohini Dasi where a Division Bench of this Court held inter-alia that a litigant who avails himself of the right to press inconsistent or contradictory cases can hardly by expected to secure confidence of the Court.
Issue-3: Did the defendant fail to pay monthly rents as per provision embodied in the Deed of Lease?
By the communication dated 1st December 1987 (Exhibit-D), the respondents/plaintiffs had alleged that rents from October 1987 have not been paid by Marshall and accordingly a demand for a further sum of Rs.18,000/- was made by the respondents/plaintiffs for the rent of October and November 1987. Marshall did not reply to the aforesaid letter and did not tender any rents pursuant thereto. Reference may also be made to the evidence where an Advocate representing Marshall was called upon to produce the original letter dated 1st December 1987 and was unable to produce the same. It is also recorded in the evidence that the said Advocate representing Marshall sought leave to retire from the matter as he was not receiving any instructions from Marshall. Significantly, Marshall did not produce any witness to refute the contentions of the plaintiffs. The evidence in this context is of some importance. Mahavir's witness admitted that Mahavir did not pay any rent directly to the plaintiffs from 1974 to 1992. There is also no evidence to record to show that Marshall paid the rent to the plaintiff for the aforesaid period. Marshall has relied on several documents being Exhibits 3, 4 and 5 which are all of May and August 2004 and are between Mahavir and the plaintiffs with regard to payment of rent in relation to September 2000 to August 2001. The suit was filed in 1988 and hence the documents are all post suit correspondence. The said correspondence should also be viewed in the light of the order passed by this Court on 5th July 1988 whereby the plaintiffs were directed to accept the payments made by Mahavir without prejudice to their rights and contentions. The evidence of Mahavir's witness also refers to the fact that payment was made to the plaintiffs only from 1992 onwards i.e. after institution of the suit. For the aforesaid reasons we are of the view that Marshall failed to pay monthly rents to the plaintiffs as was agreed upon by the parties in the deed of lease.
Issue-4: Did the defendant in violation of the Rules and Bye-Laws of the Kolkata Municipal Corporation and in breach of sanctioned plan construct unauthorized structure in the demised premises and convert the bathroom space on the ground floor into shops?
The respondents/plaintiffs had relied upon the sanctioned building plan of 1966 (Exhibit-I). In contending that the defendants breached the terms of the lease in causing constructions to be made which were not in accordance with the sanctioned plan of the KMC. The defendants on the other hand, have relied on a building plan of 1975. By an order dated 10th December 2013, the Executive Engineer of KMC was directed to find out the sanctioned plan No.22 dated 9th April 1975 which was relied on by the defendants in support of the constructions. However, instead of the plan of 1975, the only sanctioned plans of which were produced were of 1966. Since by a later order dated 14th February 2014, Counsel for KMC produced Exhibit-1 series of documents being the sanctioned plans of 1966. Pursuant to an inspection of the premises, the Surveyor's Report dated 28th January 2011 (Exhibit-J) has pointed out the deviations caused by the construction in relation to the sanctioned plans of 1966. The surveyor also referred to the certified copies of the plans of 1966 (Exhibit-K) and has given evidence of the major deviations; in his examination-in-chief which has not been disproved in his cross-examination. In our view, the significant fact is that although the appellants/defendants have all along relied on sanctioned plans of 1975 (and not 1966 as relied on by the respondents/plaintiffs), no plan of 1975 could ultimately be produced by the defendants as well as Counsel appearing for the KMC. Although it may not be impossible that the KMC could have lost or misplaced some of its records, it is strange that the earlier plan of 1966 has been repeatedly produced and referred to in the evidence but not the later plan of 1973. Mahavir's witness produced seven plans claiming the same to be sanctioned plans of 1975 (Exhibit-6 and which were tendered subject to objection) the authenticity of the said documents were questioned and the evidence in this regard of Mahavir's witness shows that the authenticity of the 1975 plans was not proved to the satisfaction of the Court. The witness brought in by Mahavir by way of subpoena, also could not produce any plan of 1975 and admitted in his evidence that no plan of 1975 was found in the records of KMC. The said witness has also admitted in his evidence that the sanctioned plans of 1966 (Exhibit-1 series) were authenticated sanctioned plans produced by the KMC and that there was no record with the KMC which substantiated the existence of any plan in 1975. It is relevant that several orders were passed by this Court in February and March 2009 wherein it was recorded inter- alia that the Executive Engineer Borough V KMC, could not produce the sanctioned plan No.22 dated 9th April 1975 (relied upon by the appellants/respondents) and produced instead the plans of 1966. We have considered the fresh Report dated 2nd July 2014 (Exhibit-M) filed by the witness of the plaintiffs on the basis of the 1975 set of plans where it has been stated that the 1966 set of sanctioned plans are the last set of sanctioned plans as per the KMC records and that the deviation should be compared with the 1966 set of plans and not with reference to the 1975 plans. The Report also states that enquiries at the site revealed that more than 600 shops/offices have been constructed in the suit premises. The evidence/cross-examination of the author of the Report confirmed the aforesaid deviations. Hence, in our view, even assuming that the 1975 sanctioned plans existed and the appellants/defendants constructed in accordance with the same, even then there have been deviations caused by the appellants which amounts to breach of the terms under the deed of lease. We therefore hold that the construction made by the defendants was in violation of the Rules and Bye-laws of the KMC and in breach of the sanctioned plan with regard to the demised premises.
Issues -5 : Are the plaintiffs entitled to get a decree, as prayed for? Issue- 6: to what reliefs are the plaintiffs entitled?
Since we are of the view that the defendants have committed breach of the terms of the lease namely for payment of rent and for violation of the Rules and Bye-laws of the KMC by constructing the building in deviation of the sanctioned plan, the plaintiffs were entitled to determine the lease and to the decree as prayed for. Further, since the determination of the lease is valid, the occupation of the defendants subsequent to the determination is unlawful and the plaintiffs are entitled to mesne profits.
The appellants have relied upon Narendra Bahadur Tandon Vs. Shanker Lal reported in AIR 1980 Supreme Court 575 and Bhuneshwar Prasad & Anr. Vs. United Commercial Bank & Ors. Reported in (2000) 7 Supreme Court cases 23, on the point that the notice determining the lease was given a go by. However, these decisions were in relation to creation of a new tenancy within the meaning of section 116 of the Transfer of Property Act and hence do not apply to the facts of this case unless as in Bhuneshwar, Mahavir can establish that a new lease was created by the plaintiffs accepting rent after expiry of the lease within the meaning of section 116 of the Transfer of Property Act. In this context, the effect of the order passed on 5th July 1988 by this Court is reiterated where the plaintiffs were directed inter-alia to accept the payments made without prejudice to their rights and contentions. Since the correspondence relied on by the Mahavir being letters sent by Mahavir to the plaintiffs (Exhibits-3 and 4) are all post filing of the suit and no indication was given by the plaintiff that a fresh tenancy was being created, they cannot be construed to be creation of a new lease or a tenancy within the meaning of section 116 of the Transfer of Property Act. Admittedly, the appellants have failed to pay in terms of the order dated 5th July 1988 at the rate of Rs.9,000/- per month from September 2001 till January 2015. The learned Single Judge was therefore correct in holding that the plaintiffs were entitled to a decree for a sum of Rs. 14,49,000/- being the aggregate of the amount which the defendants are liable to pay in terms of the order dated 5th July 1988 and from September 2001 till January 2015, on the basis of the admission of the defendants that no payment was made on and from September 2001.
For the reasons as stated above, we agree with the views of the learned Single Judge in decreeing the suit in terms of prayer (a) of the plaint and granting the reliefs as directed in the impugned judgment. Both the appeals, being APD No. 173 of 2015 and APD No. 174 of 2015, are accordingly dismissed. There shall, however, be no order as to costs.
Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis.
(MOUSHUMI BHATTACHARYA, J.) (BISWANATH SOMADDER, J.)